Prescription is a legal regime of great importance in our civil law. Indeed, a complete book is dedicated to him in the Civil Code of Quebec. It is therefore essential to keep abreast of the details and specificities of this concept in order to be able to assert your rights more effectively.
In this article, Me Lambert elaborates on the principle of prescription by explaining how it is applied in Quebec law using concrete examples.
Prescription: what is it?
In our legal system, prescription is a way of acquiring or extinguishing a right by the mere passage of time.
The limitation period may also work in favour of the debtor in order to release him from his obligation to repay his debts. Thus, once the period established by law has elapsed, the limitation period will become enforceable against all, even the State, in cases where this is permitted.
There are two types of prescriptions: acquisitive prescription and extinctive prescription.
Calculation of the limitation period
The period that must elapse in order to complete the limitation period is set by several provisions of the Civil Code. Keep in mind that the period of time established may vary depending on the circumstances and the type of prescription that one wishes to assert. These points will be clarified a little further down in the article.
However, article 2879 of the Code explains to citizens the general terms and conditions that they must take into account when calculating the limitation period.
First of all, when adding up the days that have passed, we only have to consider the whole days. It will also be necessary to exclude the day from which the prescription begins to run. This will only be acquired when the last day of the period is over and not before. In addition, if ever the last day turns out to be a Saturday or a holiday, then it will be necessary to wait until the next working day in order to assert it.
Acquisitive prescription
Acquisitive prescription generally makes it possible to obtain a right of ownership over a property through the passage of time.
In the case of movable property, the time limit begins to flow from the moment the owner is no longer in possession of the movable property in question. If the furniture comes into the possession of a person other than the owner, the latter will have acquired the right of ownership within three years of the dispossession of the object. However, if the possessor has acted in bad faith, the acquisitive limitation period may be set at 10 years.
In the case of an immovable, the period begins to run from the moment a person takes possession of the immovable and begins to act as the owner of the immovable. The period of time set by the Code is 10 years. The owner will therefore be able to claim his title deed once the decade has passed.
Extinctive prescription
The extinctive prescription is the one that matters most to us when it comes to having your rights recognized in terms of civil liability.
Indeed, this type of limitation period has the effect of extinguishing a right of action by the simple fact of not using it within the time limits established by law. You may thus be opposed to a plea of inadmissibility if you decide to act once the prescribed period. For example, if you file a lawsuit after the statute of limitations has expired, the Court may accept that you have a possible remedy, but that you will not have access to it, since your right of action will be considered time-barred. Hence the importance of knowing these deadlines well so as not to have unpleasant surprises when it comes time to exercise your rights.
In general, when it comes to asserting a personal right such as the right to physical integrity, the period is then reduced to 3 years. This is also valid with regard to moral and material damage.
However, sometimes harm occurs a few years after a fault has been committed. For example, in a case heard at the Court of Appeal, a land surveyor committed a land delimitation error. However, the damage did not occur until 7 years after the end of his contract. The Court then ruled that in cases of civil liability, the 3-year period begins to run when the 3 essential elements are met; or fault, harm and causation. It is therefore not necessary to take into account the moment when the fault was committed, but rather the moment when the damage first manifested itself.
The same principle prevails if the damage is gradual. We then begin to count from the first day it appeared.
When it comes to asserting his right to reputation, the Code sets the period at 1 year, from the moment the victim became aware of the defamation made against him. In a judgment delivered by the Court of Appeal, dealing with racist remarks broadcast in a television programme, the Court recalled that regardless of the serious nature of the remarks, the time limit remains the same.
In cases where the harm suffered is the result of a criminally reprehensible act, Parliament provides a more generous window of time to take legal action. Thus, victims have 10 years to file a lawsuit from the moment they become aware of the causal link between the criminal act suffered and the harm manifested. If it is harm caused by acts of sexual assault, there is no time limit.
It must also be taken into account that the burden of proof in civil proceedings is not the same as in criminal cases, and it is the former that will take precedence in the civil trial. That is to say, it will only be necessary to prove by the balance of probabilities that the criminal act did indeed take place.
To read about the situations where a prescription can be changed, see our article on changing the prescription.
If you wish to bring a civil action for bodily injury, do not wait until the last minute to contact us.
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